United States of America v. John Laton

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0437P (6th Cir.)
File Name: 03a0437p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN LATON,
Defendant-Appellee.
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No. 02-5185
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 01-20235—Robert H. Cleland, District Judge.
Argued: August 1, 2003
Decided and Filed: December 10, 2003
Before: DAUGHTREY, MOORE, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Jennifer L. Webber, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellant.
Leslie I. Ballin, BALLIN, BALLIN & FISHMAN, Memphis,
Tennessee, for Appellee. ON BRIEF: Jennifer L. Webber,
ASSISTANT UNITED STATES ATTORNEY, Memphis,
2 United States v. Laton No. 02-5185
Tennessee, for Appellant. Leslie I. Ballin, BALLIN,
BALLIN & FISHMAN, Memphis, Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. SUTTON, J. (pp. 27-48),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Local and
state government institutions provide a wide variety of
services ranging from transportation to economic
development, which can produce ripples in the broader stream
of interstate commerce to varying degrees. The general
question presented by the relatively bizarre factual
background of this case is whether or not a core function of
municipal government — the provision of firefighting
services — impacts interstate commerce such that an
individual can be indicted under a federal anti-arson statute
for destroying a fire station. The more precise question, upon
which we dwell, is whether the Henning, Tennessee Fire
Station was used in an activity affecting interstate commerce
such that the person charged with setting it ablaze can be
indicted under 18 U.S.C. § 844(i). We hold that this
particular fire station was used in an activity affecting
interstate commerce and accordingly REVERSE the
judgment of the district court dismissing the indictment and
REMAND for further proceedings consistent with this
opinion.
I. BACKGROUND FACTS AND PROCEDURE
Prometheus may have thought twice before handing down
the gift of fire to humans had he imagined that those whom
the mere mortals chose to steward the precious flame would
use it to decimate the very mechanisms employed to control

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No. 02-5185 United States v. Laton 3
its power. We are faced with precisely such an odd event.
On March 3, 2000, the Henning Fire Station (“HFS”) was
destroyed by fire. Henning is a rural town in the western
Tennessee county of Lauderdale. It lies between Memphis
and Dyersburg on U.S. Route 51 and is approximately twenty
miles from the Mississippi River. On September 18, 2001, a
federal grand jury indicted John Laton (“Laton”), the chief of
the Henning Fire Department (“HFD”), on one count of arson
in violation of 18 U.S.C. § 844(i), the federal anti-arson
statute.
Laton subsequently moved to dismiss the indictment in
October 2001, contending that the district court lacked subject
matter jurisdiction over the prosecution because the HFS was
not used in an activity affecting interstate commerce. Both
parties agreed upon and submitted to the court a set of
stipulations, which established the relevant facts regarding the
HFS and the HFD. First, the HFS housed firefighting
equipment, including fire trucks, nozzles, uniforms, hoses,
and other equipment. Additionally, the HFS contained an
office, a kitchen, and meeting spaces for members of the
HFD. Second, the HFD purchased most of its firefighting
equipment from out-of-state vendors, and the HFD in the past
relied upon out-of-state vendors for repairs to this equipment.
Third, the HFD is responsible for responding to fire
emergencies in Henning, which, like any other town, contains
residences, churches, public buildings, and businesses. In the
past, the HFD has responded to various emergency calls
involving several businesses in Henning, including a market
and a laundry facility, the Henning Police Department, and
vehicles in distress on U.S. Route 51 and at the U.S. Route 51
rest area. Fourth, when the HFD responds to fire calls outside
of the Henning city limits, the HFD charges out-of-state
insurance companies $500. Fifth, the volunteer firefighters
who compose the HFD are paid wages by the City of Henning
based upon the amount of time that they spend at a fire scene.
The total wages paid to the firefighters generally does not
exceed $1,000 per year. Sixth, the firefighting presence of the
HFS and the HFD impacts insurance rates in Henning.
4 United States v. Laton No. 02-5185
Virtually all American insurance companies use the Public
Protection Classification (“PPC”) to calculate fire-insurance
premiums in a particular area. The PPC is partially based
upon the equipment, staffing, training, and geographic
distribution of local fire departments. Fire insurance
premiums in a community with a “good” PPC are
considerably lower than in a community with a “bad” PPC,
and insureds in an area that lacks fire services altogether will
have the “worst” PPC and the highest premiums.
The district court granted Laton’s motion to dismiss on the
ground that the HFS was not used in interstate commerce.
United States v. Laton, 180 F. Supp. 2d 948 (W.D. Tenn.
2002). It focused its analysis on “whether the [HFS] was
used in the activities of the [HFD], and whether those
activities substantially affect interstate commerce.” Id. at
952. The court thus bifurcated the purposes of the HFS and
the HFD, reasoning that it was “not significant that the [HFS]
houses the trucks that drive to sites” of fires involving
business or other instrumentalities of interstate commerce
because “[t]his is too attenuated a series of connections to
constitute a building that is used ‘in any activity’” that affects
interstate commerce. Id. The district judge then ruled that the
purchase of supplies from out of state, the payment of some
wages to the firefighters, the fees billed for out-of-city fires,
and the impact upon insurance rates did “not indicate any sort
of active employment, but is again evidence of, at the very
least, a passive connection.” Id. at 953. Accordingly, the
court dismissed the indictment, because it ruled that it lacked
subject matter jurisdiction over the case. Id.
The government timely appealed the district court’s ruling.
We have jurisdiction to hear such an appeal pursuant to
18 U.S.C. § 3731. See id. (“In a criminal case an appeal by
the United States shall lie to a court of appeals from a
decision, judgment, or order of a district court dismissing an
indictment . . . .”). On review, we reject the reasoning of the
district court, reverse its judgment dismissing the indictment,

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No. 02-5185 United States v. Laton 5
and remand for further proceedings consistent with this
opinion.
II. ANALYSIS
A. Erroneous Dismissal for Lack of Subject Matter
Jurisdiction
As a preliminary matter, we hold that the district court
erred in dismissing the indictment based on the conclusion
that it lacked subject matter jurisdiction. In United States v.
Rayborn, 312 F.3d 229 (6th Cir. 2002), which we decided
after the district court’s decision in this case, we held that the
interstate-commerce requirement “is simply one of the
essential elements of § 844(i),” even though it is frequently
denoted a “‘jurisdictional element.’” Id. at 231. We
explained that “[i]t is not jurisdictional in the sense that it
affects a court’s subject matter jurisdiction, i.e., a court’s
constitutional or statutory power to adjudicate a case.” Id.
The district court here, just like the district court in Rayborn,
did have subject matter jurisdiction over the indictment under
18 U.S.C. § 3231.
This does not end the appeal. We noted in Rayborn that
“this court typically vacates a dismissal order when it
determines that a district court has erred in dismissing a case
for lack of subject matter jurisdiction . . . .” Rayborn, 312
F.3d at 232. Yet, Rayborn also instructs that when the district
court “undertook an evaluation of the merits of the interstate
commerce question under the guise of subject matter
jurisdiction,” id., we are permitted to determine whether the
evidence produced by the government (or in this case
stipulated to by both parties) is sufficient to permit a rational
jury to find that a particular building was used in an activity
that affected interstate commerce such that the indictment can
still stand. Id. at 235-36; see also United States v. Latouf, 132
F.3d 320, 325-26 (6th Cir. 1997) (“The relevant inquiry when
reviewing claims of insufficient evidence is whether after
viewing the evidence in the light most favorable to the
6 United States v. Laton No. 02-5185
1“Interstate commerce” is defined as “commerce between any place
in a State and any place outside of that State.” 18 U.S.C. § 841(b).
2Affect is “[t]o act upon; influence; change; enlarge o r abrid ge; . . .
to act, or produce an effect or result upon; to imp ress or influence . . . .”
BLACK’S LA W DIC T IO N A R Y 57 (6th ed. 1991).
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
(internal quotations omitted)).
We follow Rayborn’s lead and review the merits of the
district court’s determination that the HFS was not used in an
activity that affected interstate commerce. Because the
inquiry into whether the HFS affects interstate commerce is
a mixed question of fact and law, we review the district
court’s determination de novo. United States v. Salvo, 133
F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122 (1998).
B. Section 844(i) and Its Applicability to Government
Buildings and Property
We start with the plain language of the statute. Section
844(i) provides: “Whoever maliciously damages or destroys,
or attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce shall be
imprisoned for not less than 5 years and not more than 20
years . . . .” 18 U.S.C. § 844(i) (emphasis added).1 The
statute thus covers the arson of any building that is either used
in interstate commerce or that is used in any activity affecting
interstate commerce.2
Crimes of arson have traditionally been viewed as
“paradigmatic common-law state crime[s],” but in 1982
Congress chose to federalize certain arson crimes as an
exercise of its Commerce Clause power. Jones v. United

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No. 02-5185 United States v. Laton 7
3Congress originally passed § 844(i) as part of the Organized Crime
Control Act of 197 0 to contro l the use and possession of explosives. See
Russell v. United States, 471 U.S. 858, 860 n.5 (198 5). In 198 2, Congress
amended the statute to include the words “fire or” before the words “an
explosive.” Jones v. United States, 529 U.S. 848 , 853 n.4 (2000 ).
4W e note that the federal prosecution of Laton does not preclude the
state from also prosecuting him if it so desires. See Heath v. Alabama,
474 U.S. 82, 89-90 (1985) (“‘[A]n act denounced as a crim e by both
national and state sovereignties is an offense against the peace and d ignity
of both and m ay be p unished by each.’” (quoting United States v. Lanza ,
260 U.S. 377, 382 (1922)). Under the federal arson statute, Laton faces
a sentenc e of five to twenty years, assuming that no persons were injured
by the fire. 18 U.S.C. § 844(i). If any persons were injured, Laton faces
a sentenc e of seven to forty years, and if any persons were killed by the
fire, Laton is subject to any term of imprisonm ent, includ ing life
imprisonment. Id. Under the Tennessee arson statute, the destruction of
a building by fire is a Class C felony, which is punishable by a term of
imprisonment of three to fifteen years. See Tenn. Code Ann. §§ 39-14-
301, 40-3 5-111(b)(3). If any persons were injured in the fire, the arson
of the HFS would constitute a Class A felony, which is punishable by a
term of imprisonm ent of fifteen to sixty years. See Tenn. Cod e Ann.
§§ 39-14-302, 40-35-111(b)(1). Any supposed friction, as the dissent
labels it, between the policy choices of the United States Congress and the
Tennessee Legislature regarding the severity of the criminal sanction is
a necessary by-product of a federalist republic; a disparity between state
and federal sentences, which in this instance is de m inimis, occurs quite
often in areas of concurrent jurisdiction, such as prosecution for drug-
related offenses.
States, 529 U.S. 848, 858 (2000).3 In seeking to avoid
“render[ing] traditionally local criminal conduct a matter for
federal enforcement,” Congress “will not be deemed to have
significantly changed the federal-state balance” unless it
clearly conveys its purpose. United States v. Bass, 404 U.S.
336, 349-50 (1971) (quoted in Jones, 529 U.S. at 858).4
Additionally, when Congress fails to speak in clear and
definite language, “ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity.”
Jones, 529 U.S. at 858 (quoting Rewis v. United States, 401
U.S. 808, 812 (1971)). Had Congress been ambiguous in its
formulation of § 844(i), the rule of lenity might apply, but
8 United States v. Laton No. 02-5185
counter to the dissent’s belief that § 844(i) suffers from a lack
of clarity, Congress made transparent its objective in passing
§ 844(i). It fashioned a statute that covered the arson of “any”
building and included a jurisdictional element limiting its
reach to buildings that are used in interstate commerce or in
any activity affecting interstate commerce, such that § 844(i)
was “intended to protect all business property, as well as
some additional property that might not fit that description,
but perhaps not every private home.” Russell v. United
States, 471 U.S. 858, 862 (1985).
We are mindful of our duty to construe a statute so as to
eschew constitutional questions, and the straightforward
application of the jurisdictional element here aids us in
avoiding any such entanglements. The prominent issue raised
by this appeal is not constitutional in scope, rather it is an
exercise in statutory interpretation. In United States v. Lopez,
514 U.S. 549 (1995), the Supreme Court remarked that the
Gun-Free School Zones Act of 1990 (formerly 18 U.S.C.
§ 922(q)) “contain[ed] no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce.” Id. at
562 (emphasis added). It distinguished § 922(q) from the
former 18 U.S.C. § 1202(a), a statute examined in United
States v. Bass, 404 U.S. 336 (1971), “which made it a crime
for a felon to ‘receive, posses[s], or transport in commerce or
affecting commerce . . . any firearm,’” Lopez, 514 U.S at 561-
62 (emphasis added) (quoting Bass, 404 U.S. at 337). The
Court wrote that “[u]nlike the statute in Bass, § 922(q) has no
express jurisdictional element which might limit its reach to
a discrete set of firearm possessions that additionally have an
explicit connection with or effect on interstate commerce.”
Id. at 562. Unlike § 922(q), § 844(i) does contain a
jurisdictional element, and we accordingly follow the lead of
previous post-Lopez decisions, which focus on interpreting
the words of similarly phrased jurisdictional elements. See
Rayborn, 312 F.3d at 232-33 (applying Jones’s two-part test
to determine that the jurisdictional element in § 844(i) was
satisfied and the prosecution could proceed); United States v.

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No. 02-5185 United States v. Laton 9
5W e use “local” to encompass all political entities within but not
including a state, such as municipalities, counties, and special districts
(water, school, economic develop ment, etc.).
Riddle, 249 F.3d 529, 536 (6th Cir. 2001) (RICO provision,18
U.S.C. § 1962(c); United States v. Napier, 233 F.3d 394, 400
(6th Cir. 2000) (firearms provision governing those under
domestic-violence court orders, 18 U.S.C. § 922(g)(8));
United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999)
(Hobbs Act, 18 U.S.C. § 1951); United States v. Ables, 167
F.3d 1021, 1030 (6th Cir. 1999) (money laundering provision,
18 U.S.C. § 1956); United States v. Chesney, 86 F.3d 564,
568-70 (6th Cir. 1996) (firearms provision governing
convicted felons, 18 U.S.C. § 922(g)(1)). Our responsibility
is to decide whether the government can demonstrate that the
HFS was used in commerce or in an activity affecting
commerce such that any rational juror could find that the
jurisdictional element of the crime defined in the statute has
been satisfied beyond a reasonable doubt.
On its face, § 844(i) does not distinguish between the arson
of traditional for-profit business property, nonprofit
organizations’ structures and equipment, or state and local
government buildings and supplies,5 because the statute
simply governs “any building, vehicle, or other real or
personal property.” 18 U.S.C. § 844(i). There can be little
doubt that virtually all edifices and personal property
employed by for-profit businesses are both used in interstate
commerce and used in activities that affect interstate
commerce, as they primarily house and make possible the
operation of businesses that buy, sell, manufacture, ship, and
finance goods and services. Nonprofit institutions can also
impact interstate commerce. The mere fact that a nonprofit
organization differs from its for-profit cousins in its treatment
of net earnings does not prevent its buildings or property from
being used in interstate commerce or in an activity affecting
interstate commerce. As the Supreme Court has explained,
“[n]othing intrinsic to the nature of nonprofit entities prevents
10 United States v. Laton No. 02-5185
6The Court also rejected “as unsound in principle and unworkable in
practice, a rule of state immunity from federal regulation that turns on a
judicial appraisal of whether a particular governmental function is
‘integral’ or ‘traditional.’” Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 546-47 (1985). The Court highlighted “the elusiveness of
objective criteria for ‘fundamental’ elements of state sovereignty,”
labeling such obliqueness as “a problem we have witnessed in the search
for ‘traditional governmental functions.’” Id. at 548.
them from engaging in interstate commerce,” particularly
because “they purchase goods and services in competitive
markets, offer their facilities to a variety of patrons, and
derive revenues from a variety of sources, some of which are
local and some out of State.” Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U.S. 564, 585-86 (1997).
Thus, as the Court stated, “[f]or purposes of Commerce
Clause analysis, any categorical distinction between the
activities of profit-making enterprises and not-for-profit
entities is . . . wholly illusory.” Id. at 586.
Similarly, government institutions not only can affect
interstate commerce but also can be direct participants in
interstate commerce. The Supreme Court has noted on
several occasions the impact that certain federal, state, and
local government institutions can have on interstate
commerce. See Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 537, 547-48 (1985) (holding that application of
Fair Labor Standards Act (“FLSA”) to transportation
employees employed by local government does not
contravene the Commerce Clause because labor conditions of
those employees affect interstate commerce).6 Governments
in general, and individual government institutions in
particular, can serve in both a sovereign/regulatory capacity
and a market capacity, and their actions as either can affect
interstate commerce. See Lehman v. City of Shaker Heights,
418 U.S. 298, 303 (1974) (holding that a municipal transit
vehicle is not a public forum for First Amendment purposes
because “the city is engaged in commerce” and the
advertising space in question “although incidental to the

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No. 02-5185 United States v. Laton 11
provision of public transportation, is part of a commercial
venture”); United States v. Kokinda, 497 U.S. 720, 725 (1990)
(concluding that federal government acts as proprietor, and
not as regulator, for First Amendment purposes when it
operates the United States Post Office); Int’l Soc’y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)
(ruling that local government acts as a proprietor when it
owns and operates an airport).
In their operations as a sovereign or as a regulator,
governments may engage in interstate commerce or in
activities that affect interstate commerce, even though the
impetus for their actions is noncommercial because it is
motivated by public service. See Garcia, 469 U.S. at 539
(“The constitutional distinction between licensing drivers and
regulating traffic . . . or between operating a highway
authority and operating a mental health facility, is elusive at
best.”); United States v. Terry, 257 F.3d 366, 369 (4th Cir.
2001) (“We cannot close our eyes to the commercial nature of
an activity solely because non-commercial considerations also
underlie it.”). In their function as market participants,
governments inherently influence interstate commerce. See
White v. Mass. Council of Constr. Employers, Inc., 460 U.S.
204, 207, 214 (1983) (ruling that when a city government
expends its own funds for construction of public projects, it
can promote the employment of its own citizens, because it
acts as “a market participant” and “there is no indication of a
constitutional plan to limit the ability of the States themselves
to operate freely in the free market” (quotation omitted));
Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d
909, 912 (8th Cir. 1997) (defining a local airport commission,
which operated the airport and charged concession fees from
various vendors, as a market participant); Pic-A-State Pa.,
Inc. v. Reno, 76 F.3d 1294, 1301 (3d Cir. 1996) (“It is beyond
dispute that state lotteries affect interstate commerce.”)
(quoting The Lottery Case, 188 U.S. 321, 354 (1903)
(“[L]ottery tickets . . . are subjects of commerce.”)).
12 United States v. Laton No. 02-5185
7Counter to the dissent’s assertion, the fact that city-funded
firefighting constitutes an unbargained-for public service is not relevant
to the analysis. That individual citizens do not explicitly contract for
firefighting support does not mean that fire stations and fire departments
fail to impact interstate commerce. Individuals do not bargain with non-
profit organizations in order to receive charity or other forms of
assistance, yet the Supreme Court has made clear that any rigid
categorization of non-profits as entities incap able o f affecting interstate
commerce is void. Camp s New foun d/Owatonna, Inc. v. Town of
Harrison, 520 U.S. 564 , 586 (1997 ).
The reality that the core functions of government are not
exclusive of interstate commerce does not only hold true
when a government operates a commercial enterprise, such as
a post office, lottery, or liquor store. Government institutions
also can affect interstate commerce when they provide core
public services, such as police protection and emergency
services.7 See Prickett v. DeKalb County, 92 F. Supp. 2d
1357, 1362-63 (N.D. Ga. 2000) (determining that labor
practices of county fire department impact interstate
commerce such that the FLSA applies to its employees);
Persons v. City of Gresham, 704 F. Supp. 191, 193 (D. Ore.
1988) (applying FLSA to municipal firefighters because the
fire department responded to emergencies that involved
instrumentalities of interstate commerce and protected
businesses engaged in interstate commerce); Conway v.
Takoma Park Volunteer Fire Dep’t, 666 F. Supp. 786, 791
(D. Md. 1987) (same). One can imagine dozens of state and
local government institutions that could be used in activities
affecting interstate commerce, including but not limited to
airports, seaports, convention centers, police departments
auctioning off seized and forfeited property, health care
centers, and departments of property management, economic
development, and waste collection. Accordingly, Section
§ 844(i) has been invoked in the past to prosecute the arson of
public buildings; for example, the Tenth Circuit affirmed the
conviction under § 844(i) of the arsonist of a City Hall.
United States v. Woodward, No. 93-3123, 1993 WL 498178
(10th Cir. Dec. 2, 1993) (unpublished). The police

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No. 02-5185 United States v. Laton 13
department is not used in an activity affecting interstate
commerce simply because it sells “I Support My Local Police
Department” stickers, but to believe that such fundraising
sales are the only way that a police building can be used in
activities affecting interstate commerce naively ignores a
police department’s role as reclaimer of stolen property
moving between states, auctioneer of seized goods, and
perpetuator of the safety necessary to encourage interstate
business growth.
The link between government and commerce described
above merely establishes that state and local government
buildings and property are neither inherently disconnected
from nor innately intertwined with interstate commerce. Each
piece of real or personal property, taking into account its
function, must be assessed individually to determine the
extent to which it impacts interstate commerce. There can be
no uniform and inflexible rule that §844(i) covers either all or
none of the wide variety of municipal buildings that fill either
the largest urban metropolis or the smallest rural hamlet. This
perfectly conforms to Congress’s will as expressed in
§ 844(i); the insertion of a jurisdictional element mandates a
case-by-case, building-by-building inquiry into whether that
particular building is used in an activity that affects interstate
commerce, no matter whether it is owned and operated by a
supermarket, an advocacy group, or a local-government
police department.
C. The Supreme Court’s Analysis of 18 U.S.C. § 844(i)
The Supreme Court has had two opportunities to analyze 18
U.S.C. § 844(i) and to establish a mechanism by which courts
can assess whether real or personal property is used in
interstate commerce or in an activity that affects interstate
commerce. In Russell v. United States, 471 U.S. 858 (1985),
the Court considered whether the arson of a two-unit
apartment building that was used as a rental property fell
within the purview of 18 U.S.C. § 844(i). The Court held that
“the statute only applies to property that is ‘used’ in an
14 United States v. Laton No. 02-5185
8Enacted as part of the “Explosive Control Act” provisions of the
Organized Crime Control Act of 1970, 84 Stat. 922, 952 , the precursor to
§ 844(i) provided stiff penalties for “[w]hoe ver maliciously damages or
destroys, or attempts to damage or destroy, by means of an explosive, any
building, vehicle, or other real or personal property used for business
purposes by a person engaged in commerce o r in any activity affecting
commerce . . . .” H.R. 16699, 91st Cong., 2d Sess. (1970) (emp hasis
added). During a hearing on this pro vision, several represe ntatives
expressed conc ern that the statute as word ed would not cover the bombing
of police stations or churches and suggested leaving out the words “for
business purposes.” Russell, 471 U.S. at 860 -61 nn.6-7. This phrase was
not included in the statute as enacted.
9The dissent suggests that a glance at § 844(i)’s code-book neighbor,
18 U.S.C. § 844(f) definitively reveals that Congress did not intend for
§ 844 (i) to reach all government buildings even though § 844(f) governs
only the destruction of federal, but not state or local, buildings. Section
844(f)(1) reads: “Whoever maliciously damages or destroys . . . by means
of fire . . . any building, vehicle, or other perso nal or real prope rty in
who le or in part owned or p ossessed b y, or leased to, the U nited States,
or any departm ent or agency thereo f, or any institution or organization
receiving Federal financial assistance, shall be imp risoned . . . .” This
provision criminalizes the arson of any federal building, such as the
former Murrah Federal Building in Oklahoma City, or any building
owned by an organization obtaining federal assistance, such as a
university research laboratory that receives a federal grant and then
markets its technology. The two statutes do not reference each other,
although they were passed at the same time in response to the spate of
‘activity’ that affects commerce” and reasoned that “[t]he
rental of real estate is unquestionably such an activity.” Id. at
862. In its analysis, the Court noted that the original version
of the bill proposing § 844(i) contained the words “for
business purposes,” but that Congress removed such language
before enactment “after considering whether the bill as
originally introduced would cover bombings of police stations
or churches . . . .” Id. at 860; see also id. at 860-61 nn.5-9
(quoting the relevant legislative history).8 The Court read this
legislative history to suggest “that Congress at least intended
to protect all business property, as well as some additional
property that might not fit that description, but perhaps not
every private home.” Id. at 862.9 Because the apartments in

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No. 02-5185 United States v. Laton 15
bom bings in the late 196 0s. See United States v. Eichman, 957 F.2d 45,
46 (2d Cir. 199 2) (describing § 844(f)’s history). O ne cannot logically
conclude that the specific mention of federal government buildings in
§ 844(f) provides definitive evidence of Congress’s intention to draw
§ 844 (i)’s boundaries just shy of reaching state or local government
buildings.
The provisions overlap in som e respects, but they are no t so
complimentary that the existence of one negates the purpose of the other.
For the arson of the university lab mentioned above, both § 844(i) and
§ 844(f) apply. However, the two statutes will not always be
interchangeable such that § 844(i) is surplusage. The arson of a building
owned by the federal government or an entity receiving federal assistance
that does not in any way affect interstate commerce cannot be prosecuted
under § 844(i), but can be under § 84 4(f). Fo r exam ple, if an individual
purchased a single-family residence under a federal program in which the
cost of the home was split between the buyer and a state-run housing
organization receiving federal funds such that the state government owned
part of the residence, the arson of that residence would be punishable
under § 84 4(f), but not § 844 (i). Cf. United States v. Da vis, 98 F.3d 141,
145 (4th Cir. 1996) (affirming prosecution under § 844(f) for the arson of
a single-family townhouse because a state housing authority that received
federal assistance heavily subsidized the rent of the tenant). Similarly, the
arson of a non-federal building, the owners or possessors of which do not
receive federal funds, cannot be prosecuted under § 844(f), but may be
under § 84 4(i) if the building was used in an activity affecting interstate
commerce. Th us, there are certain arsons that may be prosecuted under
§ 844(f), but not § 844(i), and others that may be prosecuted under
§ 844(i), but not § 844(f). Each section has a special function to serve.
the building were rented to tenants at the time of the fire, the
Court concluded that the property was “being used in an
activity affecting interstate commerce.” Id.; see also United
States v. Ryan, 9 F.3d 660, 667 (8th Cir. 1994) (ruling that a
closed fitness center affected interstate commerce because the
building was owned and leased by an individual from a
different state).
The question that Russell hinted at — whether or not
§ 844(i) reached the destruction of a private residence —
remained unresolved until 2000. In Jones v. United States,
529 U.S. 848 (2000), the Supreme Court ruled that Ҥ 844(i)
does not reach an owner-occupied residence that is not used
16 United States v. Laton No. 02-5185
10The Supreme Co urt has thus twice relied on this legislative history
in analyzing § 8 44(i). Even if this legislative history did not exist, it
wou ld not alter our conclusion because it is the plain language of the
statute that directs us towards the inquiry o f whether the fire station is
used in an activity that affects interstate commerce. However, we need
not ignore the history of § 844(i). W e agree with the dissent that we are
not to “attach decisive significance to the unexplained disappearance of
one word from an unenacted bill because ‘m ute interm ediate legislative
maneuvers’ are not reliable indicators of congressional intent.” Mead
Corp. v. Tilley, 490 U.S. 714 , 723 (1989 ) (emphasis added) (quo ting
Trailm obile Co. v. Wh irls, 331 U.S. 40, 61 (1947)). We also recognize
that “unenacted appro vals, beliefs, and desires are not laws.” Puerto Rico
Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501
(1988). How ever, the disapp earance o f the words “for business purposes”
from the proposed, but unenacted, version of the original § 844 (i) in 1970
was neither unexplained nor mute. Congress explained that it removed
the words to ensure that § 844(i) covered more than just traditional
business properties, although precisely how much more is the question we
address today. Furthermore, the belief or d esire that § 84 4(i) co ver “any”
type of build ing used in interstate commerce could not be described as
unenacted. In contrast to the words “for b usiness purposes,” which were
not included in the final bill, § 844(i)’s coverage of “any building . . .
used . . . in any activity affecting interstate . . . commerce” (em phasis
add ed), reflects the desires of Congress to broaden the sco pe of the anti-
arson statute to encompa ss some pub lic institutions, such as police
stations.
for any commercial purpose.” Id. at 852. Justice Ginsburg,
writing for a unanimous Court, again noted how Congress
removed the “for business purposes” language from the
proposed bill in order to indicate “that . . . the provision
should apply to the bombings of schools, police stations, and
places of worship.” Id. at 853 n.5 (citing Russell, 471 U.S. at
860-61).10 The Court emphasized the “qualifying words
‘used in,’” which mandates “‘that the damaged or destroyed
property must itself have been used in commerce or in an
activity affecting commerce.’” Jones, 529 U.S. at 854
(emphasis added) (quoting United States v. Mennuti, 639 F.2d
107, 110 (2d Cir. 1981)). It then outlined a two-part inquiry
for assessing the applicability of § 844(i), which entailed an
analysis of “‘the function of the building itself, and then a
determination of whether that function affects interstate

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No. 02-5185 United States v. Laton 17
commerce.’” Jones, 529 U.S. at 854-55 (quoting United
States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,
concurring in part and dissenting in part)). In exploring
whether § 844(i) covered the destruction of a private
residence, the court reasoned that for a building to be used in
an activity affecting interstate commerce requires “active
employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce.” Jones,
529 U.S. at 855. The Court ultimately ruled that a private
residence does not fit within § 844(i) where its only
relationship to interstate commerce is the receipt of natural
gas, a mortgage, or an insurance policy because such a limited
nexus did not constitute “active employment.” To hold
otherwise would mean that “hardly a building in the land
would fall outside the federal statute’s domain” because
“[p]ractically every building . . . is constructed with supplies
that have moved in interstate commerce, served by utilities
that have an interstate connection, financed or insured by
enterprises that do business across state lines, or bears some
other trace of interstate commerce.” Id. at 857.
This two-part inquiry must be conducted in every federal
arson case to determine whether the jurisdictional element of
§ 844(i) has been met. This case-by-case analysis is
mandated by Congress’s inclusion of a jurisdictional element,
which, as mentioned previously, distinguishes § 844(i) from
the Gun-Free School Zones Act of 1990 that the Supreme
Court struck down in Lopez. See Lopez, 514 U.S. at 562
(“[Section] 922(q) has no express jurisdictional element
which might limit its reach to a discrete set of firearm
possessions that . . . have an explicit connection with or effect
on interstate commerce.”). The evidence of Congress’s
intention to permit federal prosecution of arson of police
stations strongly implies that arson of fire stations is also
covered, because police stations and fire stations provide
similar public safety services. Naturally, Congress’s
envisioning of § 844(i) prosecutions for the arson of schools,
police stations, and churches does not mean that the arson of
all such institutions is covered by the statute, but rather only
18 United States v. Laton No. 02-5185
11The complicity of the Henning Fire Chief in the arson of the HFS
does not facto r into the analysis. The application of § 844(i) does not turn
on the identity of the arsonist. It is a bitterly ironic tw ist that an official
employed by the local government, in fact the official in charge of fire
safety, destroyed the fireho use, but it is not legally pertinent.
those that are used in an activity that affects interstate
commerce.
D. The Application of Jones to Laton’s Indictment
We now turn to the application of Jones’s two-part analysis
to the destruction of the HFS.11 The first step is to identify
the function of the HFS and the equipment that the building
housed. A building and the personal property within that
building can have multiple functions. See Jones, 529 U.S. at
856 (distinguishing the private home at issue from a residence
that was also used as a home office or for a commercial
enterprise). Accordingly, a “building’s function is not limited
to its primary use.” Rayborn, 312 F.3d at 233. Churches, for
example, primarily serve a religious function, but churches
can also have secondary and important economic purposes.
Terry, 257 F.3d at 369 (holding that a church “can have both
a religious aspect and an economic one” when the church
operated a daycare center); United States v. Grassie, 237 F.3d
1199, 1209-10 (10th Cir. 2001) (acknowledging that a
church’s activities can be both religious and commercial);
United States v. Odom, 252 F.3d 1289, 1294 (11th Cir. 2001)
(“Churches are not commonly considered a business
enterprise; nonetheless, churches can and do engage in
commerce.”).
Similarly, the HFS performed one ancillary function and
one main function. It fulfilled an ancillary function of
assuring the homeowners and businesses of Henning that their
property was safe. The HFS was a municipally owned
building that stood alongside the police department and the
city hall as a public institution and a visible public safety
shield for the citizens of Henning. More significantly, the

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No. 02-5185 United States v. Laton 19
HFS made the HFD possible; fire departments cannot exist
without fire stations. The HFS facilitated the provision of fire
protection services necessary for the economic development
and prosperity of Henning because the station and the
equipment in the building provided the HFD with the
implements necessary to combat fires. The function of the
building and the trucks, hoses, boots, hats, and
communication devices was to permit the HFD to battle ably
any conflagration within the jurisdiction of the HFD, whether
it be a small brush fire or a major truck or automobile
accident on U.S. Route 51.
We reject the district court’s conclusion that the functions
of the HFS can be separated from the functions of the HFD,
such that the HFD’s firefighting efforts affected interstate
commerce, but the HFS, an edifice containing firefighting
equipment, did not. The district court wrote that “most of the
facts to which the parties stipulate involve the purposes of the
Henning Fire Department, not the Henning Fire Station” and
ruled that “[i]t is not significant that the Henning Fire Station
houses the trucks that drive to the sites that require service,
even though those sites are sometimes businesses that are
involved in activities that themselves affect interstate
commerce.” Laton, 180 F. Supp. 2d at 951-52. This analysis
too finely atomizes the roles of the HFS and the HFD and
ignores the inseparability of their functions. Neither the HFD
nor any other fire department in the country can operate
without trucks, hoses, axes, flashlights, fire-retardant
uniforms, meeting spaces, and communication systems. To
hold that the HFD could affect interstate commerce by putting
out fires at businesses in Henning or along U.S. Route 51, but
that the HFS could not because it only houses the trucks that
combat those fires, is no less erroneous than the conclusion
that a garage housing a towing service does not affect
interstate commerce because the tow trucks perform their
commercial function on the road or the conclusion that a radio
studio does not affect interstate commerce because the
intangible radio waves emanated from the studio are diffusely
captured by listeners. One could fracture nearly any
20 United States v. Laton No. 02-5185
traditional for-profit business, particularly in the service
sector, into a building that does not in itself affect interstate
commerce and a service performed elsewhere that most
certainly does affect interstate commerce, but such division
only obfuscates the true impact of the business as a whole.
The second step of the Jones analysis involves determining
whether the function of the HFS affects interstate commerce.
We must analyze whether the HFS, in its role as a municipal
building that enables firefighting, is “used” in an activity that
affects interstate commerce: does it enjoy “active
employment for commercial purposes” rather than “a passive,
passing, or past connection to commerce”? Jones, 529 U.S.
at 855. A single relationship to interstate commerce or the
conjunction of several different ties to interstate commercial
activity can support a finding that a building was actively
employed in commerce. For example, in Rayborn we
affirmed a conviction under § 844(i) for the arson of a church.
Rayborn, 312 F.3d at 234. The church broadcasted radio
messages by renting out time from various stations in order to
increase the attendance and contributions of out-of-state
parishioners, it drew members from three states, it paid
salaries, it hosted gospel concerts featuring out-of-state talent
for which it requested donations, and it owned several
vehicles. Id. at 234-35. On this basis, we concluded that
“[t]he church’s interstate connections were direct, regular, and
substantial.” Id. at 234. Other courts have similarly found
churches to affect interstate commerce where the church has
some active commercial connection. See United States v.
Terry, 257 F.3d 366, 369-70 (4th Cir. 2001) (finding that a
church daycare center “was actively engaged in commercial
activity” because it provided childcare services for payment);
United States v. Grassie, 237 F.3d 1199, 1209 n.7 (10th Cir.
2001) (holding that a Mormon church in rural New Mexico
affected interstate commerce because the revenues of the
church and the tithed incomes, goods, and services of church

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No. 02-5185 United States v. Laton 21
12Several courts have ruled that § 844(i) does not cover churches
where the connection to interstate commerce is limited to purchasing
supplies, sending dues and contributions across state lines, acquiring
insurance, or providing services and religious education. See United
States v. Lamont, 330 F.3d 12 49, 1256 -57 (9th Cir. 2003) (rejecting
gove rnment’s contention that § 844(i) applied where church purchased
gas, insurance, and supplies from out of state and several church attendees
came from out of state); United States v. Rea, 300 F.3d 95 2, 962 (8th Cir.
2002) (concluding that § 844(i) did not cover a church annex that only
housed Sund ay scho ol classes and after-school tutoring because the
purchase of supplies for the annex by itself had only “fleeting effects on
interstate commerce”); United States v. Odom, 252 F.3d 1289, 1296-97
(11th Cir. 20 01) (dismissing church’s rec eipt of donations from out-of-
state donors, utilization of Bibles purchased from out-of-state vendors,
and contributions to various out-of-state nonprofit organizations as “too
passive, too minimal and too indirect” to affect interstate commerce);
United States v. Johnson, 246 F.3d 749, 752 (5th Cir. 2001) (holding that
earlier decisio n, United States v. Johnson, 194 F.3d 657 , 662 (5th Cir.
1999), which was vacated and remanded by the Supreme Court, 530 U.S.
1201 (2000), correctly concluded that contribution of funds by church
members to a national organization and payment of an insurance claim by
an out-of-state insurer did not suffice to show that the jurisdictional
element of § 844(i) had been met).
members flowed across state lines for distribution by the
church’s headquarters in Salt Lake City).12
Churches are not the only buildings that we and other
courts have found to be used in an activity affecting interstate
commerce. In United States v. Sherlin, 67 F.3d 1208, 1213
(6th Cir. 1995), we held that the arson of a dormitory at a
private college was punishable under § 844(i). The college
was a nonprofit institution, but its dormitory was used in an
activity that affected interstate commerce because the college
received payments from students in return for educational
services, it advertised out of state, and almost all of the
students living in the destroyed dorm hailed from other states.
Id. In Bellflower v. United States, 129 F.3d 1459, 1462 (11th
Cir. 1997), the Eleventh Circuit held that § 844(i) covered the
bombing of a police vehicle, which a local sheriff’s deputy
used in his law enforcement responsibilities. That court held
22 United States v. Laton No. 02-5185
that the destruction of the police car had “a significant impact
on interstate commerce” because the deputy patrolled traffic
and made arrests on an interstate highway, issued citations to
out-of-state drivers, participated in interstate narcotic
investigations, assisted out-of-state authorities in
apprehending suspects, recovered stolen property from other
states, and attended law enforcement training sessions in other
states. Id.
The Supreme Court’s decision in Jones made clear that the
mere receipt of inputs or services from an out-of-state vendor
is not a sufficient connection to interstate commerce to
support an indictment under § 844(i). Jones, 529 U.S. at 856.
Accordingly, a purely private residence, which is only
connected to interstate commerce through the material used
to construct it, the supplies used to heat it, or the monetary
instrument used to finance its purchase, is not used in an
activity affecting interstate commerce. However, when the
government relies on other connections to interstate
commerce to establish the jurisdictional element of § 844(i),
the purchase of supplies from out of state can offer additional
support for the conclusion that a building or property is used
in an activity affecting interstate commerce. See Rayborn,
312 F.3d at 234-35 (mentioning, in addition to other factors,
that a church affected interstate commerce because it
purchased local goods, such as groceries and flowers);
Sherlin, 67 F.3d at 1214 (noting that a college dorm affected
interstate commerce partially because it purchased “numerous
supplies” from out of state, including food services).
When it crafted § 844(i) to encompass the arson of police
stations, Congress recognized that the provision of emergency
services by municipalities can affect interstate commerce in
the active sense of the phrase. See Jones, 529 U.S. at 853 n.5;
Russell, 471 U.S. at 860-61. Fire stations provide similar
emergency services and undoubtedly can affect interstate
commerce. See Benson v. Universal Ambulance Serv., 675
F.2d 783, 786 (6th Cir. 1982) (affirming lower court’s
determination that the FLSA applies to private ambulance

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No. 02-5185 United States v. Laton 23
employees because responding to emergencies on streets and
highways affects interstate commerce given that it removes
obstructions to the free flow of interstate commerce);
Bellflower, 129 F.3d at 1462 (upholding conviction under
§ 844(i) for the arson of a police vehicle because the officer’s
responses to emergencies affected interstate commerce). The
issue, though, is not whether all fire stations and fire
departments affect interstate commerce; the jurisdictional
element of § 844(i) requires us to focus our attention only on
whether the HFS is used in an activity affecting interstate
commerce.
We conclude that a rational juror could find beyond a
reasonable doubt that the HFS was used in an activity that
affected interstate commerce because its role in fighting fires
constituted an active, rather than a passive, employment in
interstate commerce. See Latouf, 132 F.3d at 325. Six
aspects of the HFS demonstrate this connection. First, the
HFS housed firefighting equipment, including trucks, hoses,
nozzles, and uniforms, which the HFD purchased from out of
state, which the HFD sent for repairs out of state, and which
perished in the fire. The precise dollar amount of this
equipment is not known, but given that the equipment
destroyed included at least one fire vehicle, it was not trivial.
Second, the HFD charged $500 to out-of-state insurance
companies for fighting fires outside of the Henning city
limits, although it only did so a few times annually. Third,
the HFD paid its volunteers wages based on the amount of
time spent on a fire scene, although these wages generally
have not exceeded $1000 annually.
On their own, these first three factors may not form an
adequate nexus to interstate commerce under Jones. If the
purchase of equipment from out-of-state were the only link
between the HFS and interstate commerce, the dissent might
be right that this case is easier than, or at least as easy as,
Jones given that the acquisition of a mortgage, natural gas,
and insurance from out-of-state providers was the extent of
the interstate commerce connection in Jones. The dissent’s
24 United States v. Laton No. 02-5185
13The town of Henning is the site of the Alex Haley Museum, several
antique shops, a restaurant, two beau ty salons, two grocery stores, a bank
branch, an auto parts store, twenty churches, 161 renter-occupied housing
units, and a clothing manufacturer that employed seventy-five peo ple in
2002.
belief that this is an easier case than Jones sidesteps
fundamental differences between Jones and this case, for
much more than the mere purchase of supplies from out of
state ties the HFS into the web of interstate commerce. As
demonstrated below by the final three links to interstate
commerce, we find it persuasively clear that the HFS was
used in an activity affecting interstate commerce.
Fourth, the HFD is charged with responding to fire
emergencies within the Henning city limits. In the past, the
HFD has responded to emergency calls from several
businesses in Henning, including a market and a laundry
facility. In the future, it is certain that the HFD will be called
upon to fight fires at other businesses in Henning.13
Preventing the destruction of commercial establishments
strikingly affects interstate commerce by preserving entities
directly engaged in interstate commerce.
Fifth, the HFD serves to protect both the channels of
commerce and the instrumentalities of commerce because it
is the primary emergency services provider for the stretch of
U.S. Route 51 going through Henning. The HFD has
responded (and will respond in the future) to incidents and
accidents both on U.S. Route 51 and at the U.S. Route 51 rest
area. The HFD’s role in extinguishing fires, saving lives, and
keeping U.S. Route 51 clear impacts interstate commerce.
The HFD protects passenger vehicles carrying tourists and
travelers voyaging through western Tennessee, it safeguards
the interstate shipments of goods, and it permits the freeflow

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No. 02-5185 United States v. Laton 25
14Not only commercial shipping and passenger vehicles pass through
Henning, but also passenger buses ope rated by Greyhound, Inc., shuttle
between Mem phis and Dyersburg (and to points further south and north).
Additiona lly, active railroad tracks owned by the Illinois Central Railroad
run para llel to U.S. Route 51 through Henning. Freight trains frequent
these tracks and AMT RAK runs passenger service along this route,
connecting Chicago to New Orleans, with stops in Dyersburg to the north
and Me mphis to the south. Any fire emergency in Henning involving a
bus or a train would require the assistance of the HFD.
15W e do not conclude in this opinion that because every
com munity’s PPC depends on the training and geographic distribution of
fire companies, all fire stations are automatically used in an activity
affecting interstate commerce. Given Congress’s explicit instruction that
the application of § 844(i) depends on the specific circumstances of a
particular fire station, we limit our analysis to the fire station in Henning.
of trucks and buses through the area.14 The HFD’s
firefighting capabilities in this regard affect interstate
commerce, because insuring that the channels of commerce
are kept open and the instrumentalities of commerce are
protected is not a passive or passing connection to interstate
commerce.
Sixth, and finally, the presence of the HFS and the HFD
impacts insurance rates in Henning. The absence of the HFS,
and the impact on the HFD’s competency that is wrought by
the loss of the HFS, directly alters the PPC, which helps
insurance companies calculate fire insurance premiums. As
a result of the fire, Henning will have a worse PPC, and
insurance premiums will rise. The presence of an active fire
department in Henning thus significantly impacts the
insurance rates of all the businesses (and homes) in Henning,
which in turn influences the commercial transactions of those
businesses, both in the sense of their relationships to their
insurers and their profit margins.15
Any of these last three factors by itself demonstrates
sufficiently that the HFS was used in an activity that affected
interstate commerce, because its connection to commerce was
26 United States v. Laton No. 02-5185
more than passive or passing. Taken together, along with the
first three factors, they show that the connection of the HFS
to interstate commerce resembles the links between interstate
commerce and the church in Rayborn, the dormitory in
Sherlin, and the police car in Bellflower. The HFS and the
HFD have a definite impact upon the economy of Henning
that is no less significant than a church purchasing radio time
or a nonprofit college attracting students from other states.
The HFS permits local businesses to operate, enables the free
flow of goods and passengers through the state of Tennessee,
lowers the costs of doing business by decreasing fire
insurance premiums, and directly engages in commercial
transactions, in a more minor way, through the purchase of
supplies and the billing of insurance companies.
Accordingly, any rational juror could conclude beyond a
reasonable doubt that the jurisdictional element was met here
because the HFS is actively used in an activity that affects
interstate commerce.
III. CONCLUSION
Because we conclude that both parts of the Jones test have
been satisfied, we hold that there is sufficient evidence to
support the indictment as the HFS was used in an activity
affecting interstate commerce. We thus REVERSE the
judgment of the district court and REMAND for further
proceedings under § 844(i) consistent with this opinion.

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No. 02-5185 United States v. Laton 27
_______________
DISSENT
_______________
SUTTON, Circuit Judge, dissenting.
“Some say the world will end in fire, Some say in ice.”
Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220
(Edward Connery Lathem ed., 2002). From what the 970
residents of Henning, Tennessee have seen of John Laton,
their fire chief, one could certainly understand why they
would “hold with those who favor fire.” Id.
Yet the incompatibility of this crime with this alleged
criminal merely serves as a prelude to other oddities of this
case. Consider what happened after the fire chief set fire to
the Henning Fire Station. While arson is a state-law felony in
Tennessee, as in all States, neither the local prosecutors nor
the Attorney General of Tennessee indicted this defendant.
While the federal crime of arson applies just to property “used
in” interstate commerce, 18 U.S.C. § 844(i), the National
Government indicted this defendant for destroying a building
that has a uniquely public, non-commercial and sovereign
purpose. And while the United States acknowledged at oral
argument that it was not aware of a single other prosecution
under § 844(i) for the arson of a local public building, the
United States Attorney for the Western District of Tennessee
invoked this statute in response to the destruction of a rural
fire department by a local fire chief.
This case, however, is not just unusual as a matter of fact,
law, or history; it is also unusual as a matter of precedent.
Three Terms ago, in a 9-0 decision, the United States
Supreme Court held that § 844(i) does not apply to the
burning of residential homes. Jones v. United States, 529
U.S. 848 (2000). In doing so, the Court made clear that the
provision applies only to the destruction of buildings with an
“active employment for commercial purposes, and not merely
28 United States v. Laton No. 02-5185
a passive, passing, or past connection to commerce.” Id. at
855. Fire stations are no more “active[ly]” used for
“commercial purposes” than residential homes are. In point
of fact, this would seem to be the easier case—as firefighting
represents the epitome of an unbargaining public service and
the arsonist in this instance represents the epitome of a local
public official. To conclude otherwise is to embrace the view
that even the most attenuated connections to commerce will
suffice in prosecuting individuals under this statute, a
perspective that by my reading of Jones is no longer an option
for the lower courts. For these reasons and those elaborated
below, I would affirm the judgment of the district court
dismissing this case.
I.
On March 3, 2000, John Laton allegedly set fire to the
Henning, Tennessee Fire Station. At the time, Laton served
as the Chief of the Henning Volunteer Fire Department, a city
government position. Henning, Tenn. Mun. Code §§ 7-301,
7-305. Under Tennessee law and the Henning Municipal
Code, Laton’s job qualified him as a state officer, specifically
an assistant to the state fire marshal, subject to all of the
duties and obligations imposed on state officers under
Tennessee’s fire-prevention laws. Tenn. Code Ann. § 68-
102-108; Henning, Tenn. Mun. Code § 7-308.
Henning is a small rural town located in western Tennessee.
It has a population of 970 and sits in Lauderdale County
(population 27,101). U.S. Census Bureau, Census 2000,
Table DP-1. Henning lies about fifty miles north of Memphis
and can be found at the crossroads of State Routes 87 and
209. (The author Alex Haley grew up in Henning.)
On September 18, 2001, a federal grand jury indicted Laton
for arson in violation of 18 U.S.C. § 844(i). Laton moved to
dismiss the indictment, arguing that § 844(i) did not
encompass this incident because the Henning Fire Station was
not “used in” interstate commerce or a commerce-affecting

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No. 02-5185 United States v. Laton 29
activity. Before ruling on Laton’s motion, the district court
received a stipulation from the parties agreeing on several
pertinent facts.
The stipulation contains few surprises. The parties agree,
for example, that the function of the Fire Station building is
to “house[] the fire fighting equipment including trucks, as
well as the office, kitchen and meeting spaces for the Henning
Volunteer Fire Department.” The Henning Municipal Code
adds that “[a]ll [such] apparatus, equipment, and supplies”
must be “purchased by or through the town” and “remain the
property of the town.” Henning, Tenn. Mun. Code § 7-301.
The parties agree that the Fire Department responds to
firefighting calls in a rural area of Tennessee that includes
numerous residences, churches, public buildings, several
businesses and one U.S. highway. In some instances, the Fire
Department has provided emergency services to vehicles on
fire and/or involved in accidents on the highway.
The parties agree that the Fire Department has occasional
connections to three types of economic transactions. First,
the Department has purchased equipment from, and had
equipment repaired by, out-of-state vendors. Second, the
Department charges a fee when it responds to calls outside the
city limits, which it does on average no more than three times
a year. According to the Henning Municipal Code, the Fire
Department responds to such calls only when a fire outside
the city limits threatens property within the city limits or
when the mayor and aldermen grant the Fire Department
permission to respond to the call. Henning, Tenn. Mun. Code
§ 7-307. City employees working at City Hall bill these fees,
which amounted to $300 per call in March 2000, and have on
occasion billed these fees directly to out-of-state insurance
companies. The total amount billed in a year, the parties
agree, does not exceed $1,000. Third, the City of Henning
pays wages to the “volunteer” fire fighters based on the
amount of time they spend at the scene of a fire. Total wages
paid by the City in a typical year do not exceed $1,000.
30 United States v. Laton No. 02-5185
According to the Municipal Code, the mayor and aldermen
determine the compensation for Fire Department personnel.
Henning, Tenn. Mun. Code § 7-305.
The parties lastly agree about the general economic impact
of the loss of a fire station. In calculating property-insurance
premiums, virtually all insurers of homes and businesses use
a designation made by the Insurance Services Office called
the Public Protection Classification (PPC). A community’s
PPC depends on the ability of fire departments to respond to
calls. Property owners in areas with no fire service receive
the highest PPC, and they accordingly pay substantially
higher premiums than those paid by similarly-situated
property owners who live in areas with a lower PPC.
The district court granted Laton’s motion to dismiss the
indictment. In doing so, the court concluded that the Henning
Fire Station is not “used in” interstate commerce or in “an
activity affecting interstate commerce,” but is used for the
non-commercial purpose of housing the City’s Fire
Department. To the extent that the activities of the Fire
Department have any effects on commerce—through
responding to fires, purchasing fire equipment, paying wages,
receiving fees or affecting insurance rates—the district court
added that they are merely “incidental” and “passive, at best.”
That attenuated connection to interstate commerce, the court
concluded, did not suffice to bring this arson within the
compass of § 844(i) or of the Supreme Court’s recent
interpretation of the provision in Jones v. United States, 529
U.S. 848 (2000).
II.
The text of the statute does not provide a natural home for
this prosecution. Section 844(i) provides in pertinent part:
“Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
building, vehicle, or other real or personal property used in
interstate commerce or foreign commerce or in any activity

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No. 02-5185 United States v. Laton 31
affecting interstate or foreign commerce shall be imprisoned
. . . .” 18 U.S.C. § 844(i).
By its terms, § 844(i) combines a broad grant of statutory
authority (to federalize the arson of “any” property) with a
broad limitation on that language (to do so only with respect
to property “used [1] in interstate or foreign commerce or [2]
in an activity affecting interstate or foreign commerce”).
Congress defines “interstate or foreign commerce” for these
purposes to mean “commerce between any place in a State
and any place outside of that State, or . . . between places
within the same State but through any place outside of that
State.” 18 U.S.C. § 841(b).
As commonly understood, these words do not cover the
arson of a rural fire station by a local fire chief. Fire stations
are not naturally referred to as property used in interstate
commerce or in commerce-affecting activity. By everyday
standards of language, common sense and tradition, local
governments build fire stations to put out fires and save lives,
activities that serve distinctly intrastate public-safety
objectives, not interstate commercial ends.
III.
Precedent reinforces this conclusion. Three years ago,
Jones v. United States, 529 U.S. 848 (2000), construed the
same statute and determined that it does not apply to a typical
private residence. Id. at 850–51.
The Court initially explained that Congress did not “invoke
its full authority under the Commerce Clause” in enacting
§ 844(i). Id. at 854. While Congress might have “‘define[d]
the crime . . . as the [destruction] of a building whose damage
or destruction might affect interstate commerce,’” it instead
required “‘that the damaged or destroyed property . . . itself
have been used in commerce or in an activity affecting
commerce.’” Id. at 854 (quoting United States v. Mennuti,
639 F.2d 107, 110 (2d Cir. 1981) (Friendly, J.)).
32 United States v. Laton No. 02-5185
In determining whether an alleged arson fits within the
terms of the statute, Jones instructs lower courts to ask (and
answer) two questions. First, a court must determine “‘the
function of the building itself.’” Id. at 854 (quoting United
States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,
concurring in part and dissenting in part)). Second, a court
must “‘determin[e] whether that function affects interstate
commerce,’” id., mindful that this requires “active
employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce,” id. at 855
(emphasis added).
The burning of the Henning Fire Station does not satisfy
these requirements. Viewed from any angle, the Fire Station
served sovereign rather than commercial ends. The Fire
Station constitutes municipal real property (a building and
land), used to store municipal personal property (firefighting
equipment), deployed by a municipal entity (the Fire
Department), to perform a uniquely municipal function
(firefighting). Local governments simply do not “sell” fire
services “in the ordinary commercial sense.” Cleveland v.
United States, 531 U.S. 12, 23–24 (2000) (a State “does not
‘sell’ video poker licenses in the ordinary commercial sense”
and a State’s interest in them “surely implicates the
Government’s role as sovereign, not as property holder”).
They instead provide an eminently useful, sovereign and
necessary public service. Id.; see also Goldstein v. Chestnut
Ridge Volunteer Fire Co., 218 F.3d 337, 344, 348 (4th Cir.
2000) (stating that “it is difficult to conceive of a service
associated more closely with the state than the provision of
fire protection services,” and holding that a Maryland
volunteer fire department that was formed as a non-profit
corporation is a state actor for § 1983 purposes); Tenn. Code
Ann. § 29-20-102(3)(A) (for purposes of governmental
immunity, the term “governmental entity” includes
“municipalit[ies]” and “nonprofit volunteer fire department[s]
receiving funds appropriated by . . . a municipality”); cf.
United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir.
1979) (rejecting the argument that a pickup truck used by a

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No. 02-5185 United States v. Laton 33
state court judge to drive back and forth from court was used
in a commerce-affecting activity just because state court
proceedings may have some effect on commerce).
That the Fire Station served sovereign rather than
commercial objectives should be dispositive here. For while
§ 844(i) does not necessarily require the property at issue to
be used for an interstate purpose, it does require the property
to be used for a commercial purpose. Only buildings, Jones
instructs, “active[ly] employ[ed] for commercial purposes,”
529 U.S. at 855, “affect[] interstate or foreign commerce”
within the meaning of § 844(i). Buildings offered for rent and
those from which goods and services are sold fall within
§ 844(i)’s compass because they serve commercial purposes,
whether or not the commercial enterprises that use them have
a profit motive. Russell v. United States, 471 U.S. 858, 862
(1985) (rental property); United States v. Rayborn, 312 F.3d
229, 234 (6th Cir. 2002) (church building used to record radio
messages to be broadcast out of state on commercial radio);
United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir. 1995)
(private college dormitory); United States v. Terry, 257 F.3d
366, 369–70 (4th Cir. 2001) (church building with daycare
center); cf. Camps Newfound/Owatanna, Inc. v. Town of
Harrison, 520 U.S. 564, 584 (1997) (holding that the dormant
Commerce Clause applies to the not-for-profit sector of the
economy). But see United States v. Lamont, 330 F.3d 1249,
1259 (9th Cir. 2003) (Reinhardt, J.) (church building “used
. . . in ordinary religious activities” is not covered); United
States v. Rea, 300 F.3d 952, 962 (8th Cir. 2002) (church
annex with de minimis commercial functions is not covered).
In marked contrast to the activities at issue in every one of
these cases, governmental buildings in general and local fire
stations in particular are not “active[ly] employ[ed] for
commercial purposes.” Jones, 529 U.S. at 855.
34 United States v. Laton No. 02-5185
IV.
A.
Other interpretive guidelines, each of which Jones endorsed
in construing § 844(i), point to the same conclusion. In
determining whether a federal criminal statute applies to the
arson of a local public building by a local public official,
Jones reminds us that we do so in the shadow of several
constitutional considerations. First of all, “where a statute is
susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of
which such questions are avoided, [a court’s] duty is to adopt
the latter.” Jones, 529 U.S. at 857 (quotation omitted). See
also United States v. Bass, 404 U.S. 336, 349 (1971)
(applying this principle, as in Jones, to a setting where one
construction of a statute would “define as a federal crime
conduct readily denounced as criminal by the States”). In
applying this constitutional-avoidance principle to the arson
of a private residence, Jones emphasized “that the area was
one of traditional state concern and that the legislation [was]
aimed at activity in which neither the actors nor their conduct
has a commercial character.” 529 U.S. at 858 (citation and
quotation omitted). See United States v. Lopez, 514 U.S. 549,
567 (1995) (holding that the Gun-Free School Zone Act
exceeds Congress’s authority to regulate commerce).
Jones likewise teaches that federal courts should not
casually read a statute in a way that alters the federal-state
balance. When the National Legislature wishes to regulate an
area traditionally regulated exclusively by the States, it must
“convey[] its purpose clearly.” Jones, 529 U.S. at 858
(citation and quotation omitted). In Jones, a unanimous Court
held that Congress had not clearly conveyed a desire to
criminalize the arson of a private dwelling. Id. Not long after
Jones, Cleveland v. United States, 531 U.S. 12 (2000),
reached a similar conclusion in construing the mail-fraud
statute. There, the Court (again unanimously) declined to
“approve a sweeping expansion of federal criminal

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No. 02-5185 United States v. Laton 35
jurisdiction in the absence of a clear statement by Congress”
and refused to extend the statute to cover “a wide range of
conduct traditionally regulated by state and local authorities.”
Id. at 24. See id. at 27 (“Absent clear statement by Congress,
we will not read the mail fraud statute to place under federal
superintendence a vast array of conduct traditionally policed
by the States.”). See also Gregory v. Ashcroft, 501 U.S. 452,
467 (1991) (“We will not read the ADEA to cover state
judges unless Congress made it clear that judges are
included.”).
Jones finally explains that these rules have special
application in the context of criminal statutes. “[W]hen
choice has to be made between two readings of what conduct
Congress has made a crime,” courts should not “choose the
harsher alternative . . . [unless] Congress [has] spoken in
language that is clear and definite,” and, accordingly, any
“ambiguity . . . should be resolved in favor of lenity.” Jones,
529 U.S. at 858; see Cleveland, 531 U.S. at 26 (“[W]e decline
to attribute to [the mail-fraud statute] a purpose so
encompassing where Congress has not made such a design
clear.”); id. at 25 (“[T]o the extent that the word ‘property’ is
ambiguous . . . , we have instructed that ‘ambiguity
concerning the ambit of criminal statutes should be resolved
in favor of lenity.’”) (quoting Rewis v. United States, 401
U.S. 808, 812 (1971)); Bass, 404 U.S. at 348 (“This policy
embodies ‘the instinctive distastes against men languishing in
prison unless the lawmaker has clearly said they should.’”)
(quoting H. Friendly, Mr. Justice Frankfurter and the
Reading of Statutes, in Benchmarks 196, 209 (1967)).
These principles assuredly apply here. “[A]rson,” Jones
reminds us, “is a paradigmatic common-law state crime.” 529
U.S. at 858. It is a felony in all States, and that has been true
since colonial days. See John Panneton, Federalizing Fires:
The Evolving Federal Response To Arson Related Crimes, 23
Am. Crim. L. Rev. 151, 151 (1985). See generally Arthur F.
Curtis, A Treatise on the Law of Arson (1936). And the
Federal Government’s role in this area historically has been
36 United States v. Laton No. 02-5185
a limited one. Not until 1982 did Congress enact the first
federal law prohibiting the arson of a “building” “by fire.”
See Jones, 59 U.S. at 852–53 & n.4.
Indeed, this case appears to be not just an awkward exercise
of federal power, but a nearly unprecedented one. At oral
argument, counsel for the Federal Government could not
identify a single other federal prosecution for arson of a
governmental building under this provision. The majority
cites a single unpublished decision, United States v.
Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec. 2,
1993), decided before Jones, to counter this admission. But
Woodward, which concerned an arson arising from a botched
robbery, does not address any of the issues raised here or in
Jones. Even the most charitable reading of Woodward, at any
rate, suggests that it is a solitary and unexplained exception to
the traditional rule that the Federal Government does not
construe § 844(i) as applying to the arson of government
buildings and as displacing the criminal-law choices of local
governments in this area.
In contrast to the minimal federal interests in this case, the
state interests would seem to be at their apex. Surely the
commission of “a paradigmatic common-law” crime (Jones,
529 U.S. at 858) by a Henning official involving Henning
property is a matter traditionally taken up, if not in Henning,
at least in Nashville. Tennessee imposes criminal sanctions
on state fire officials (such as the Chief) who fail in their
official duties. Tenn. Code Ann. § 68-102-139. And
Tennessee, of course, makes arson a felony. Id. § 39-14-301.
That there is friction between the policy choices of the
National Legislature and the Tennessee Legislature over the
appropriate criminal sanction for this felony only underscores
the sensitivity of the issue and the inter-branch tension raised
by the United States’ position. Compare 18 U.S.C. § 844(i)
(providing for a five-year minimum sentence and twenty-year
maximum sentence under these circumstances), with Tenn.
Code Ann. §§ 39-14-301(b)(1), 40-35-111(b)(3) (providing
for a shorter three-year minimum sentence and fifteen-year

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No. 02-5185 United States v. Laton 37
maximum sentence under these circumstances). See Jones,
529 U.S. at 859–60 (Stevens, J., concurring, joined by
Thomas, J.) (such a disparity “illustrates how a criminal law
like this may effectively displace a policy choice made by the
State” and, for this reason, courts “should interpret narrowly
federal criminal laws that overlap with state authority unless
congressional intention to assert its jurisdiction is plain”).
The Federal Government’s policy choice to authorize a 5–20
year sentence for this crime effectively displaces the State’s
policy choice to authorize a 3–15 year sentence for the same
crime, and that is true whether the State opts not to prosecute
Laton in the future or exercises its discretion to prosecute him
under state law as well (and potentially create an 8–35 year
sentence). See Heath v. Alabama, 474 U.S. 82, 93 (1985)
(holding that a double jeopardy violation does not result from
prosecutions by different sovereigns arising from the same
act).
The Federal Government’s own prior guidance in this area
to United States Attorneys shows respect for many of these
concerns. The Department of Justice recognizes that
Congress intended “Restraint in [the] Exercise of Federal
Jurisdiction” under this statute. 9 United States Attorneys’
Manual § 63.902 (Mar. 2001). When Congress enacted the
federal explosives statute in 1970, and amended it to cover
arson by fire in 1982, it made clear that “[n]o provision of
[the statute] shall be construed as indicating an intent on the
part of Congress to occupy the field in which such provision
operates to the exclusion of the law of any State on the same
subject matter.” 18 U.S.C. § 848. The Criminal Division of
the Justice Department “interprets [this provision] as a
statement of congressional intent that the Federal
government—absent a specific Federal interest—will not
become involved in bombing matters that can be adequately
investigated and prosecuted by local authorities.” 9 United
States Attorneys’ Manual § 63.902 (emphasis added).
In view of this guidance, the Federal Government’s
decision to prosecute here is difficult to understand. No one
38 United States v. Laton No. 02-5185
has questioned the ability of local prosecutors to enforce state
law in this area. No one has questioned Tennessee’s ability
adequately to investigate and prosecute a local arsonist at the
state level, if for some reason it cannot be done at the local
level. See Tenn. Code Ann. § 8-7-106(b)(4) (permitting a
district attorney to “specially appoint” the state attorney
general “to conduct specific criminal proceedings”); Tenn.
Const. art. VI, § 5 (permitting a court to appoint a special
prosecutor if the district attorney fails to prosecute). And,
consistent with the United States Attorneys’ Manual, no one
has identified a “specific Federal interest” in this case, just
exceedingly local ones.
B.
Because the National Government seeks to apply § 844(i)
to a traditional state-law crime in a setting where no apparent
federal interest exists, Jones requires the Government to show
that the provision unambiguously extends to this arson. It has
not done so.
First, the arson of a local fire station does not naturally—or
plainly—cover a building “used in interstate commerce” or
commerce-affecting activity. 18 U.S.C. § 844(i). Still less
does such an arson concern a building with an “active
employment for commercial purposes.” Jones, 529 U.S. at
855. But even if one disagrees with this analysis, the best that
can be said in response is that the provision remains
ambiguous about its extension to the arson of a fire station.
And that conclusion requires the application of the Jones
default principles and the narrowing interpretation that they
compel.
Second, Congress does not generally regulate governmental
entities in such an opaque manner. Instead of casting a wide
net of regulation, indirectly picking up local governmental
activities that happen to be involved in interstate commerce
while leaving out those that happen not to be, Congress
generally regulates its sovereign sisters with much greater

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No. 02-5185 United States v. Laton 39
specificity—either by regulating them by name or by
referring directly to entities that receive federal funds.
Several other statutes (too many, in fact, to list) demonstrate
that when Congress wishes to regulate sovereign activities or
property, it tends to say so far more explicitly. See, e.g., Fair
Labor Standards Act, 29 U.S.C. §§ 203(d) (“‘Employer’ . . .
includes a public agency.”), 203(r)(2) (“For purposes of
[defining ‘enterprise’], the activities performed by any person
or persons . . . in connection with the activities of a public
agency shall be deemed to be activities performed for a
business purpose.”), 203(e)(2) (“In the case of an individual
employed by a public agency, such term [‘employee’] means
. . . any individual employed by a State, political subdivision
of a State, or an interstate governmental agency . . . .”),
216(b) (providing for enforcement against “any employer
(including a public agency)”); Age Discrimination in
Employment Act, 29 U.S.C. § 630(b) (“‘[E]mployer’ means
. . . a State or political subdivision of a State.”); Family and
Medical Leave Act, 29 U.S.C. §§ 2611(4)(A) (“‘[E]mployer’
. . . includes any public agency.”); 2611(4)(B) (“For [these
purposes], a public agency shall be considered to be a person
engaged in commerce or in an industry or activity affecting
commerce.”). Against this legislative backdrop, Congress’s
decision not to mention governmental property more
specifically in § 844(i) at a minimum establishes ambiguity
about the scope of the provision. See generally Cleveland,
531 U.S. at 23–25 (concluding that the mail-fraud statute,
which covers “property” obtained by “fraudulent pretenses,”
18 U.S.C. § 1341, does not apply to a State’s sales of video
poker licenses because, among other reasons, the meaning of
“property” is “ambiguous” in this setting).
Third, § 844 itself confirms that Congress knew how to
distinguish between eminently sovereign activities and run-
of-the-mine commercial activities. One of the statutory
neighbors to § 844(i) specifically criminalizes arson of certain
governmental buildings—all buildings occupied by the
Federal Government or those occupied by entities receiving
federal assistance, which will frequently be local
40 United States v. Laton No. 02-5185
governments. See 18 U.S.C. § 844(f)(1) (“Whoever
maliciously damages or destroys . . . by means of fire or an
explosive, any building . . . owned or possessed by . . . the
United States, or any department or agency thereof, or any
institution or organization receiving Federal financial
assistance, shall be imprisoned.”). If it is true that a statute is
“known by the company it keeps,” Gustafson v. Alloyd Co.,
513 U.S. 561, 575 (1995), then § 844(f) illustrates that
Congress knew how to criminalize the destruction of all
manner of public buildings when it wished to do so and
suggests that § 844(i) was designed to reach commercial
rather than governmental buildings. Nor, in view of the
United States’ sweeping construction of § 844(i), which
would cover all governmental buildings, does the prohibition
of burning federal governmental buildings in § 844(f)(1) have
any independent office. We generally construe statutes to
avoid such redundancy, not accentuate it. See, e.g., Jones,
529 U.S. at 857; Kungys v. United States, 485 U.S. 759, 778
(1988).
All of this goes to prove one point. If it is true that federal
regulation of the arson of a private home implicates these
three expectations of clarity (constitutional avoidance,
alteration of the federal-state balance, and the rule of lenity),
as Jones holds, then assuredly the torching of the local fire
station does so as well. For here we have not just a matter of
traditional local concern (arson), but two other factors as
well—property uniquely amenable to local regulation (a city
building) and an actor (the fire chief) uniquely at the beck and
call of the local citizenry. Jones, in short, was the harder
case. And if Jones applied each of these ambiguity default
principles, then I would do so as well. In this instance, the
application of those principles all points in one direction: A
federal arson statute that does not mention public buildings by
name, that is juxtaposed with a provision that does mention
public buildings by name, and that requires the public
property to be actively used for commercial purposes does not
unambiguously cover the burning of a local fire station by the
local fire chief.

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No. 02-5185 United States v. Laton 41
V.
In the face of these considerations, the United States
counters that at least some activities that take place at the
Henning Fire Station are commercial in nature and that these
activities suffice to legitimate this prosecution. The Federal
Government cites three activities in particular: (1) that the
Fire Department sometimes purchases equipment from, or has
equipment repaired by, out-of-state vendors; (2) that the Fire
Department charges a $300 fee (billed through City Hall) on
the few occasions each year when it responds to a call outside
city limits; and (3) that the City of Henning pays wages to the
“volunteer” fire fighters based on the amount of time they
spend at a fire scene.
The Fire Department’s purchases and repairs do not
advance the United States’ position. A fire station is no more
“used” in the “activity” of purchasing interstate fire
equipment than a residence is used in the activity of
purchasing interstate natural gas, mortgages, or
insurance—all activities that the Court rejected as
jurisdictional hooks in Jones. See 529 U.S. at 856.
Neither does the fee occasionally charged by the Fire
Department support this prosecution. The size of the fee
($300) and the infrequency with which it is charged (one to
three times per year, when the Department responds to fires
outside town limits) hardly suggest active employment for
commercial purposes—which is what Jones requires. If de
minimis activity of this sort transformed every governmental
building into one used for commercial purposes, then all
public property in this country would be one bake sale away
from federal jurisdiction. No fair reading of the statute
suggests that this is what Congress meant to do.
More importantly, a State does not engage in traditional
commercial activities every time it receives a sum of money
in exchange for something or for that matter any time it
imposes a tax. See Cleveland, 531 U.S. at 23 (“Louisiana . . .
42 United States v. Laton No. 02-5185
does not ‘sell’ video poker licenses in the ordinary
commercial sense.”). That is especially true when the
revenue arrives, as here, after the fact. See id. at 22 (“The
State receives the lion’s share of its expected revenue . . . only
after [the licenses] have been issued to licensees.”). No one
suggests that the Fire Department would decline to extinguish
a fire until and unless the fee was paid. Firefighters do not
haggle over fees. In this instance, in fact, they are not even
the ones who charge the fee; it is billed by City Hall.
At all events, this argument proves too much. Were the
collection of revenue sufficient to trigger § 844(i), then
presumably tax collection would suffice as well, leaving no
public property untouched. And the separate provision
covering buildings occupied by entities “receiving Federal
assistance,” 18 U.S.C. § 844(f), “would have no office,”
Jones, 529 U.S. at 857, because receiving a federal grant is an
economic transaction. “‘Judges should hesitate . . . to treat
statutory terms in any setting as [surplusage],’” Jones
instructs, “‘and resistance should be heightened when the
words describe the element of a criminal offense.’” Id. at 857
(quoting Ratzlaf v. United States, 510 U.S. 135, 140–41
(1994)).
The Federal Government’s reliance on the fact that the
Henning Fire Department occasionally “pays wages” to its
“volunteer” firefighters fails for much the same reason.
Congress, to be sure, may as a matter of power regulate the
wages paid to firefighters, which is itself an economic
transaction. See Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 555–56 (1985). But that does not mean
Congress sought in this instance to regulate criminal conduct
with respect to the buildings that house firefighters or sought
to do so on this basis. Teachers also receive wages, but that
does not necessarily permit Congress to make possessing a
gun in a school zone a federal crime. See Lopez, 514 U.S. at
567. Indeed, if federal wage-and-hour laws have any
relevance in this context, it is to show that Congress views
firefighting and the nominal wages paid by the government to

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No. 02-5185 United States v. Laton 43
these volunteers differently from ordinary commerce. See
Fair Labor Standards Act, 29 U.S.C. §§ 203(e)(4)(A)
(exempting individuals who volunteer to serve a public
agency even when paid “nominal” wages), 207(k) (exempting
firefighters from the Act’s overtime provisions).
Nor, for similar reasons, does it make any difference that
fire stations house fire trucks, which (like police cars) may be
used in interstate commerce and indeed are instrumentalities
of interstate commerce. See Belflower v. United States, 129
F.3d 1459, 1462 (11th Cir. 1997) (concluding that § 844(i)
covered the bombing of a police car). See also Lopez, 514
U.S. at 558 (“Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may
come only from intrastate activites.”); United States v.
McHenry, 97 F.3d 125, 126 (6th Cir. 1996) (“[C]ars are
themselves instrumentalities of commerce.”) (quotation
omitted). The same of course could have been said in Jones:
It is the rare private residence that does not house a car.
Also unavailing is the United States’ reliance on the
economic impact of a fire station’s destruction—specifically,
the lower PPC ratings, the higher insurance costs, or the
inability to extinguish fires affecting local businesses or
(occasionally) burning cars on the highways. Accepting this
position would rewrite the statute to say something that it
does not. As Jones indicates, Congress did not “define the
crime . . . as the [destruction] of a building whose damage or
destruction might affect interstate commerce,” but instead
required “that the damaged or destroyed property . . . itself
have been used in commerce or in an activity affecting
commerce.” 529 U.S. at 854 (citation and quotation omitted);
cf. Lopez, 514 U.S. at 564 (rejecting a “costs of crime”
rationale for connecting federal legislation banning guns near
schools to interstate commerce). Two of Jones’ overriding
lessons—that § 844(i) does not reach the full extent of
Congress’s Commerce Clause powers, 529 U.S. at 854, and
that the statute applies only when the building itself is
44 United States v. Laton No. 02-5185
“active[ly] employ[ed]” in commerce, id. at 855—cannot be
squared with the United States’ reliance on the economic
impact of destroying the building or on the non-commercial
activity (fighting fires) performed by the occupants of the
building.
But, perhaps most critically, this argument has no logical
stopping point. All governmental services affect commerce
at some level, whether those services are legislative,
executive or judicial. Asked at oral argument to identify a
single governmental building beyond the reach of § 844(i)
under the Government’s theory, counsel for the United States
could not name one. Whether the state building at issue
houses the Department of Commerce or the Ministry of
Uneconomic Affairs, it would seem, makes no difference.
Either way, what goes on there first and foremost is a public
and sovereign service, which in the main will rarely (if ever)
be deemed “actively” “commercial” in any traditional sense
of the terms—even if all such activities eventually affect
commerce in one way or another. It is precisely the role of
the clear-statement rules identified above, and applied
faithfully in Jones, to prevent federal courts from extending
the reach of federal criminal statutes on the basis of the kinds
of attenuated connections to interstate commerce that the
Federal Government has raised here. If the majority is right
that a state liquor store, a state building housing a lottery
commission or a post office building (though a federal
building) amounts to a building with an “active[] . . .
commercial purpose,” that is only because the statute
unambiguously covers these properties, not because it
unambiguously covers an eminently non-commercial fire
station. At any rate, in view of Jones and Cleveland, 531
U.S. at 23–24 (a State “does not ‘sell’ video poker licenses in
the ordinary commercial sense” because the activity
“implicates the Government’s role as sovereign”), it seems
doubtful that the statute unambiguously covers even these
buildings.

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No. 02-5185 United States v. Laton 45
Neither may one overcome these objections by suggesting
that, in the world of case-by-case determinations, the outcome
here will be a ticket good for one train and one train only.
Until now, there have been no other trains in the station, so it
is not clear what the concession concedes. More to the point,
it still remains to be seen what government buildings
analytically would not be covered by this type of analysis—as
the United States seems to recognize.
One last point deserves mention. The United States also
seeks refuge in the legislative history, relying on an unenacted
forerunner to § 844(i), which applied to the destruction of
property used “for business purposes,” and on the statements
of some legislators that § 844(i) as enacted would cover
“police stations.” Congress eventually omitted the words “for
business purposes,” and while doing so several House
members individually explained that the language was
eliminated because some members were afraid that the statute
would not reach “police stations.” See Explosives Control:
Hearings Before Subcomm. No. 5 of the House Comm. on
Judiciary on H.R. 17154, H.R. 16699, H.R. 18573 and
Related Proposals, 91st Cong. 33 (1970) (“Hearings”) (Rep.
McCulloch); id. at 56 (Rep. Rodino); id. at 73 (Rep. Polk); id.
at 79 (Rep. Smith). The United States infers from this
unenacted legislation and from these statements by individual
representatives that Congress intended § 844(i) to cover the
arson of city buildings.
This argument fails for three reasons. First, when clarity in
the text of a law is required, legislative history by definition
cannot supply it. See United States v. Nordic Village, 503
U.S. 30, 37 (1992) (“[L]egislative history has no bearing on
the ambiguity point [because] . . . the ‘unequivocal
expression’ of elimination of [the United States’] sovereign
immunity that we insist upon is an expression in statutory
text.”); Dellmuth v. Muth, 491 U.S. 223, 230 (1989)
(“[E]vidence of congressional intent must be both
unequivocal and textual” to provide the clarity necessary to
abrogate a State’s Eleventh Amendment immunity;
46 United States v. Laton No. 02-5185
“[l]egislative history generally will be irrelevant.”) (emphasis
added); Gregory, 501 U.S. at 470 (equating the clear-
statement rule applied in the sovereign immunity context with
the clear-statement rule applied in the context of Commerce
Clause legislation that would alter the federal-state balance);
see also Cleveland, 531 U.S. at 24, 27 (requiring a “clear
statement” to extend “federal criminal jurisdiction” to an area
“traditionally policed by the States”).
Second, the use of legislative history to broaden the reach
of a law seems particularly inappropriate in a setting like this
one—where we have not just the risk of the alteration of the
federal-state balance and the imperative to avoid
constitutional questions but the imposition of a criminal
sanction. It stretches the necessary legal fiction that every
person knows the law, see McBoyle v. United States, 283 U.S.
25, 27 (1931), to the breaking point when the unenacted
views of a handful of legislators (here, for example, a few
floor statements suggesting that the law covers police
stations) become the basis for putting someone behind bars.
Because “the rule of lenity ensures that criminal statutes will
provide fair warning concerning conduct rendered illegal,”
Liparota v. United States, 471 U.S. 419, 427 (1985), and
because no one can plausibly conclude that a committee
report or the floor statements of selected legislators provides
such warning, the use of such material seems utterly
incompatible with the purposes of the rule or the civilized
interests it protects. In at least one opinion, the Supreme
Court has said that very thing: “Even were the statutory
language regarding the scope of a court’s authority to order
restitution ambiguous, longstanding principles of lenity,
which demand resolution of ambiguities in criminal statutes
in favor of the defendant, Simpson v. United States, 435 U.S.
6, 14–15 (1978) (applying rule of lenity to federal statute that
would enhance penalty), preclude our resolution of the
ambiguity against petitioner on the basis of general
declarations of policy in the statute and legislative history.”
Hughey v. United States, 495 U.S. 411, 422 (1990). While
dicta in other cases may suggest a different approach, see

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No. 02-5185 United States v. Laton 47
Moskal v. United States, 498 U.S. 103, 108 (1990), I am
aware of no decision from our Court or from the United States
Supreme Court that broadens the reach of a criminal statute
on the basis of legislative history and that does so in spite of
these objections. The only Justices of the Supreme Court
who have squarely addressed the issue (to my knowledge)
have firmly concluded that “it is not consistent with the rule
of lenity to construe a textually ambiguous penal statute
against a criminal defendant on the basis of legislative
history.” United States v. R.L.C., 503 U.S. 291, 307 (1992)
(Scalia, J. concurring in part and concurring in the judgment,
joined by Kennedy, J., and Thomas, J.).
Third, the inference the Federal Government seeks to draw
from the unenacted version of § 844(i) not only comes from
an inappropriate source but also rests on a discredited
premise. The Supreme Court has frequently rejected
arguments based on unenacted legislation, noting the
difficulty of determining whether a prior bill prompted
objections because it went too far or not far enough. See
Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (“We do not
attach decisive significance to the unexplained disappearance
of one word from an unenacted bill because ‘mute
intermediate legislative maneuvers’ are not reliable indicators
of congressional intent.”) (quoting Trailmobile Co. v. Whirls,
331 U.S. 40, 61 (1947)); Puerto Rico Dep’t of Consumer
Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501 (1988)
(“[U]nenacted approvals, beliefs, and desires are not laws.”).
See also United States v. Granderson, 511 U.S. 39, 69 (1994)
(Kennedy, J., concurring) (“This admonition takes on
particular importance when the Court construes criminal
laws.”).
All of this perhaps explains why Jones mentions the very
same legislative history that the United States cites here, see
Jones, 529 U.S. at 853 n.5, then proceeds not only to ignore
the alleged inferences created by this history but also
proceeds to contradict them. Thus, while Congress omitted
language proposed in an earlier draft of the bill (“for business
48 United States v. Laton No. 02-5185
purposes,” Hearings at 30) ostensibly suggesting that no
business purpose is needed, Jones adopts an “active . . .
commercial purpose[]” test for ascertaining whether § 844(i)
applies, 529 U.S. at 855. And some of the same legislators
who suggested that § 844(i) would cover the arson of a
“police station” also suggested that it would cover the arson
of a “private home.” Hearings at 56 (Rep. Rodino). See also
id. at 289 (Rep. Goldwater) (“this bill should include any
building, vehicle or any real property . . . not just
businesses”); id. at 300–01 (Rep. Wylie) (suggesting that the
bill should cover private dwellings and other property not
used for business); id. at 304–05 (Rep. Cramer) (“a person
has a right to safety and security of his home and to the
security of his property”). But Jones of course specifically
holds that § 844(i) does not cover private residences.
Because in the end the unbargained-for service of fighting
fires is the antithesis of an activity engaged in for an “active
. . . commercial purpose[]” and because Jones has charted a
course that in my view controls us here, I would affirm the
district court’s judgment. That being a minority view, I
respectfully dissent.

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